Common FMLA Violations by Employers

2/3/2026

The Family and Medical Leave Act (FMLA) provides essential job protections for millions of American workers, but for employers, it represents a landscape filled with legal tripwires. While most organizations strive for FMLA compliance, violations are alarmingly common. These mistakes are rarely malicious; instead, they often stem from simple misunderstandings, inconsistent practices, or inadequate training. However, intent matters little when faced with a Department of Labor (DOL) investigation or an employee lawsuit.

The consequences of non-compliance can be severe, ranging from back pay and damages to hefty legal fees and a tarnished company reputation. Understanding the most frequent errors employers make is the first step toward safeguarding your organization. This guide will explore the most common FMLA violations by employers, providing actionable advice on how to avoid these pitfalls and foster a culture of robust FMLA leave management.

The Foundation of Many Violations: Misunderstanding the Basics

Many of the most significant FMLA violations begin with a failure to grasp the fundamental rules of the law. Getting these initial steps wrong can have a domino effect, leading to multiple compliance failures down the line.

Violation 1: Incorrectly Determining Eligibility

One of the first tasks in any FMLA leave request is determining if the employee is eligible. A common and critical error is miscalculating one of the key eligibility requirements.

• How it happens: An employer might incorrectly count the "1,250 hours worked," perhaps by excluding overtime hours or including paid time off (which shouldn't be counted). Another frequent mistake is misjudging the "50 employees within a 75-mile radius" rule, either by not counting all types of employees (part-time, temporary) or by incorrectly measuring the radius.
• How to avoid it: Use a precise and systematic process for every eligibility assessment. Your FMLA employer checklist should include a step-by-step verification of all four eligibility criteria: 1) works for a covered employer, 2) has 12 months of service, 3) has worked 1,250 hours in the prior 12 months, and 4) works at a location with 50+ employees in a 75-mile radius. Use payroll data to confirm hours worked and maintain accurate headcount records for all worksites.

Violation 2: Failing to Recognize an FMLA-Qualifying Event

Not every FMLA leave request comes with a neat label. Often, an employee might simply call in sick for a few days or mention a family member's health issue without explicitly saying the word "FMLA." A major violation occurs when managers or HR fail to recognize that this information may trigger the employer's FMLA obligations.

• How it happens: A manager hears an employee mention they need to take their parent to "a lot of doctor's appointments" and treats it as a standard attendance issue instead of recognizing it as a potential need for FMLA leave. The employer fails to provide the required notices, effectively denying the employee their FMLA rights.
• How to avoid it: This is where manager training is critical. Frontline managers must be trained to spot potential FMLA-triggering language and to understand that their only role is to notify HR immediately. A core component of anyFMLA training program should be teaching leaders to listen for phrases indicating a serious health condition, a new child, or a family military deployment, and to know that the next step is always to involve HR.

Communication Breakdown: Failures in FMLA Notice Requirements

The FMLA has a strict and time-sensitive process for communicating with employees. Failure to provide the correct notices at the correct time is one of the most frequently cited violations in DOL investigations.

Violation 3: Missing the 5-Day Notice Deadline

The FMLA gives employers five business days from when they learn of a potential FMLA need to provide the employee with an Eligibility Notice and a Rights and Responsibilities Notice. Many employers miss this deadline.

• How it happens: A manager sits on a leave request for a week before forwarding it to HR, or an overburdened HR department simply falls behind. Whatever the reason, failing to send these initial notices on time is a clear violation.
• How to avoid it: Create a streamlined intake process. As soon as a manager notifies HR of a leave request, the clock starts. Use FMLA tracking tools or calendar alerts to create reminders for the five-day deadline. Standardize the process so that generating and sending these initial notices becomes a routine, high-priority task.

Violation 4: Providing Incomplete or Incorrect Notices

Even when notices are sent on time, they are often incomplete. The DOL has very specific information that must be included in each of the four mainFMLA notice requirements.

• How it happens: An employer sends an eligibility notice but fails to give a specific reason why an employee is ineligible. Or, they provide a Rights and Responsibilities notice but forget to mention the policy on substituting paid leave. A common error on the Designation Notice is failing to specify how much leave will be counted against the employee's entitlement.
• How to avoid it: Use the DOL's model FMLA forms (WH-381, WH-382, etc.). These forms are free, readily available, and contain all the required fields. Using them as your standard eliminates the guesswork and ensures you are providing all the necessary information, every time.

Errors in Leave Administration

Once leave begins, a new set of potential violations can arise. These often involve how the leave is counted, how benefits are handled, and how the employer interacts with the employee.

Violation 5: Improperly Managing Medical Certifications

The medical certification process is a minefield of potential errors. Employers often either ask for too much information or not enough.

• How it happens: A manager directly calls an employee’s doctor to ask probing questions about their diagnosis (a HIPAA and FMLA violation). On the other hand, an HR professional might accept a vague or incomplete certification form without using the proper "cure" process, which involves notifying the employee in writing of the deficiencies and giving them seven days to fix them.
• How to avoid it: Stick to the script. Only HR or another leave administrator (never the direct supervisor) should contact a healthcare provider, and only for the limited purposes of authentication or clarification. Always provide the employee with the opportunity to cure a deficient certification. This demonstrates good-faith efforts at FMLA compliance.

Violation 6: Miscalculating FMLA Leave

Incorrectly tracking FMLA leave is a widespread problem, especially with intermittent leave. This can lead to an employee being given too little or too much leave, or being disciplined for FMLA-protected absences.

• How it happens: An employer requires an employee to take a full day of FMLA leave when they only need two hours for a doctor's appointment. Or, an employer uses a manual spreadsheet to track intermittent leave and makes a calculation error, leading them to believe an employee has exhausted their leave when they have not.
• How to avoid it: The FMLA requires employers to track leave using the smallest increment of time their payroll system uses (as long as it's no more than one hour). You cannot force an employee to take more leave than necessary. The best solution is to use dedicated FMLA tracking tools. This software automates calculations, reduces human error, and provides an accurate, real-time balance of an employee’s remaining entitlement.

The Most Serious Violations: Interference and Retaliation

These violations go beyond procedural mistakes and strike at the core protections of the FMLA. They are the most likely to result in significant legal damages.

Violation 7: FMLA Interference

Interference occurs when an employer does anything to discourage, restrain, or deny an employee from exercising their FMLA rights.

• How it happens: A manager tells an employee, "If you take FMLA, you might not be eligible for that promotion." Or an employer institutes a new, more burdensome call-in procedure only for employees on FMLA leave. Even something as simple as repeatedly calling an employee on leave with questions about work can, in some cases, rise to the level of interference.
• How to avoid it: This again comes down to manager training. Leaders must understand that employees have a legally protected right to take FMLA leave. Your FMLA leave management culture should be supportive, not punitive. All policies and procedures must be applied uniformly to employees on FMLA leave and those who are not.

Violation 8: Retaliation

Retaliation is punishing an employee for having used FMLA leave. It is one of the most serious FMLA violations.

• How it happens: An employee returns from FMLA leave and is immediately placed on a performance improvement plan for issues that were never raised before their leave. An employee is terminated for "attendance issues" where the absences were FMLA-protected. An employee returns from leave to find their job has been given to someone else and they are offered a lesser role with lower pay.
• How to avoid it:
• Job Restoration: The FMLA guarantees restoration to the same or an equivalent job. Document that the returning employee was offered a virtually identical position in terms of pay, benefits, duties, and location.
• Separate FMLA from Performance: Never count FMLA-protected absences under any no-fault attendance policy. When making decisions about promotions, discipline, or layoffs, ensure that the employee's use of FMLA leave is not a factor, consciously or unconsciously.
• Document Everything: Meticulously document performance issues as they occur. If an employee with a history of documented poor performance is terminated after returning from FMLA leave, your prior documentation will be crucial to show the termination was based on performance, not the leave.

The Importance of Training in Preventing Violations

A common thread runs through nearly all these violations: a lack of knowledge. Whether it's a manager who doesn't recognize an FMLA request or an HR professional who misunderstands the notice requirements, ignorance is the root cause of many compliance failures.

This is why investing in comprehensiveFMLA training programs is not a luxury; it is a necessity for any organization subject to the law. A robustFMLA Training & Certification Program provides the detailed, practical knowledge that your team needs to navigate the law confidently. It equips them to:

• Handle every step of the FMLA process correctly, from eligibility to job restoration.
• Complete and deliver all required notices accurately and on time.
• Understand the nuances of intermittent leave, medical certifications, and benefit continuation.
• Recognize and avoid the serious legal risks of interference and retaliation.

Training your entire leadership and HR team creates a consistent and compliant approach to FMLA leave management, significantly reducing your organization's risk of committing these common violations.

Conclusion: Turning Knowledge into Compliant Action

FMLA violations can expose an organization to significant liability, but the good news is that most are preventable. By developing a strong FMLA employer checklist, standardizing your procedures, and committing to ongoing training, you can build a system that is both compliant and supportive.

Start by auditing your current FMLA process against the common violations listed here. Are your notices timely and complete? Is your leave tracking accurate? Are your managers trained to spot and escalate FMLA requests? Addressing any gaps you find is the most proactive step you can take to ensure FMLA compliance and protect your organization from costly and unnecessary legal trouble.